IN THE CASE OF:	  

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110011613 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests to remove the entry “Personality Disorder” from item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty).  She also requests to be issued a new DD Form 214 as a result of this correction. 

2.  She states the inclusion of medical information on her DD Form 214 is in violation of the Health Insurance Portability and Accountability Act (HIPAA). 

3.  She provides a copy of her DD Form 214.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Her records show she enlisted in the Delayed Entry Program (DEP) of the U.S. Army Reserve on 13 December 1984.  She was released from DEP status and enlisted in the Regular Army on 24 April 1985.  After completion of training, she served in military occupational specialty 94B (Food Service Specialist).

3.  On an unknown date, her company commander issued a letter of notification that he was recommending discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5, paragraph 
5-13 for a personality disorder.  He indicated that her personality disorder was so severe that her ability to function effectively in the military environment was significantly impaired.  She was scheduled for a complete medical examination on 18 December 1986.

4.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 18 December 1986, shows she was examined by competent medical authorities and was diagnosed as having a severe mixed personality disorder, with passive-aggressive, histrionic, and dependent features.  Her condition was also noted to be a deeply ingrained, maladaptive pattern of behavior of long duration.  Further, the disorder was so severe that her ability to function effectively in the military environment was significantly impaired.  

5.  The attending psychiatrist stated there was no psychiatric disease or defect which warranted disposition through medical channels and cleared her for administrative action as deemed appropriate by her command.  

6.  Her records show that on 27 January 1987, she consulted with counsel on the proposed action to separate her under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-13.  

7.  On 11 February 1987, the appropriate authority approved the recommendation for discharge and directed she be issued an Honorable Discharge Certificate.  He also stated that the applicant had no potential for further military service and would not be transferred to the Individual Ready Reserve.  

8.  Accordingly, on 5 March 1987 she was honorably discharged under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-13, by reason of a personality disorder.  Her DD Form 214 shows she completed 1 year, 
10 months, and 12 days of net active service during this period.  Item 25 (Separation Authority) contains the entry “AR 635-200, PARA 5-13” and item 28 shows “PERSONALITY DISORDER.”  

9.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-13 at the time provided that a Soldier could be separated for personality disorder, not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that interfered with assignment to or performance of duty.  The regulation required that the condition be a deeply-ingrained maladaptive pattern of behavior of long duration that interfered with the Soldier's ability to perform duty.  The regulation also directed that commanders would not take action prescribed in this chapter in lieu of disciplinary action, required that the diagnosis concluded the disorder was so severe that the Soldier’s ability to function in the military environment was significantly impaired, and stated that separation for personality disorder was not appropriate when separation was warranted under chapter 4, 5, 7, 9, 10, 11, 13, 14, or 15; Army Regulation 604-10 (Military Personnel Security Program); or Army Regulation 635-40.

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for soldiers upon retirement, discharge, or release from active military service or control of the Army.  It states that the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

11.  Chapter 2 of Army Regulation 635-5 provides instructions for the completion of the DD Form 214.  It states that information in item 25 (Separation Authority) is obtained from regulatory guidance or directives authorizing the separation.  Entries in item 28 are also based on regulatory guidance or other proper authority.  

12.  The U.S. Department of Health and Human Services, Office of Civil Rights prescribes the laws governing the HIPAA Privacy Rule.  It states the Privacy Rule provides federal protections for personal health information held by covered entities and gives patients an array of rights with respect to that information.  At the same time, the Privacy Rule is balanced so that it permits the disclosure of personal health information needed for patient care and other important purposes. 

13.  The Privacy Rule permits the use and disclosure of protected health information, without an individual’s authorization or permission, for 12 national priority purposes.  These disclosures are permitted, although not required, by the Privacy Rule in recognition of the important uses made of health information outside of the health care context.  Specific conditions or limitations apply to each public interest purpose, striking the balance between the individual privacy interest and the public interest need for this information.  An authorization is not required to use or disclose protected health information for certain essential government functions such as assuring proper execution of a military mission, conducting intelligence and national security activities authorized by law, making medical suitability determinations for U.S. State Department employees, and determining eligibility for or conducting enrollment in certain government benefit programs.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the information contained in item 28 of her 
DD Form 214 is in violation of the HIPAA and as a result, requests issuance of a new DD Form 214.  Her contentions and requests were carefully considered. 

2.  With regard to her narrative reason for separation, there is no evidence of record, and she has not submitted any evidence, to support her claim that her DD Form 214 is in error.  The evidence of record in this case shows she was evaluated by a psychiatrist who diagnosed her with a severe personality disorder.  Accordingly, her chain of command initiated the appropriate separation action.

3.  By regulation, the entries contained in items 25 and 28 of the DD Form 214 are obtained from regulatory guidance or other directives authorizing the separation.  Therefore, “Personality Disorder” is the appropriate entry for separation under the provisions of Army regulation 635-200, chapter 5, paragraph 5-13.

4.  The DD Form 214 is not a public document and is only disclosed at the discretion of the former service member/Soldier concerned.  The laws, rules, and regulations which govern the actions of the U.S. Army permit the entry of such data on the form when it is applicable. 
  
5.  The U.S. Department of the Health and Human Services permits the use and disclosure of protected health information without an individual’s authorization or permission in certain circumstances.  Specifically, this information may be used for the purpose of assuring proper execution of a military mission.  Executing an authorized separation action is one example of the permissible use of this information.  As such, the regulatory guidance contained in Army Regulation  635-5 and Army Regulation 635-200 pertaining to “Personality Disorder” as a narrative reason for discharge is in keeping with the HIPAA, and there is no evidence that her rights were violated.  

6.  Therefore, she is not entitled to the requested relief.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   __x_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.




ABCMR Record of Proceedings (cont)                                         AR20110011613





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ABCMR Record of Proceedings (cont)                                         AR20110011613



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